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United States v. Shoreline Motors
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New
York, on the 14th
of January, two thousand eleven.
Circuit Judges.
09-3524-cr (L)

For Richard Brown:
MICHAEL S. HILLIS, Dombroski Hillis, LLC, New Haven,
JONATHAN J. EINHORN, New Haven, Connecticut.
ROBERT C. MIRTO, Law Offices of Mirto & Rasile, LLC, West
Haven, Connecticut.
For Nelson Datil:
For David Brown:
MICHAEL S. Previous DocumentMCGARRYNext Document, Assistant United States Attorney
(Elizabeth A. Latif, Assistant United States Attorney, of counsel),
for David B. Fein, United States Attorney, District of Connecticut.
For the United States:
Appeal from the United States District Court for the District of
Connecticut (Burns, J.).
DECREED that the judgments of the District Court be and hereby are
Defendants-appellants Richard Brown, Nelson Datil, and David Brown appeal
judgments entered by the district court (Burns, J.) after a jury trial,
convicting all three
defendants on one count of conspiracy to commit mail fraud and wire fraud
in violation of 18
U.S.C. § 371; convicting each defendant on various counts of wire fraud in
violation of 18
U.S.C. §§ 1343, 2(a), and 2(b) (David Brown on six counts, Richard Brown
on one count, and
Datil on four counts); and convicting Richard Brown and Datil each on one
count of mail fraud
in violation of 18 U.S.C. §§ 1341, 2(a), and (2)(b). The charges arose
from an automobile-
financing fraud scheme carried out at Shoreline Motors Corporation (“
Shoreline”), a Mitsubishi
car dealership in Branford, Connecticut, at which the defendants were
employed. David Brown
and Datil challenge their convictions, and Richard Brown challenges his
sentence. We assume
the parties’ familiarity with the underlying facts and procedural history
of the case.

Nelson Datil
Datil’s sole argument on appeal is that, on rebuttal, the prosecutor
impermissibly shifted
the burden of proof to him by arguing to the jury that Datil’s attorney,
during his own rebuttal
summation, had not contended that handwriting on certain fraudulent loan
application forms was
not Datil’s. The prosecutor stated during the Government’s summation:
Now, you saw the documents that [the other prosecutor] put in front of you
that show
that it appears as Mr. Datil’s handwriting. And [Datil’s counsel] did not
deny that
it was his handwriting; he simplysaid [a customer’s grandmother] didn’t
sayshe saw
it, or that [the customer] didn’t say she saw him write it. Well, he could
have written
it at the dealership before he drove up to Hartford.
Tr. of Trial Day 15 at 246. Following the completion of that summation,
Datil moved for a
mistrial on the ground that the quoted comment violated his rights under
the Fifth Amendment.
We see no error in the court's denial of the motion.
An accused has a Fifth Amendment right to remain silent during his
criminal trial, and the
prosecution cannot comment on that silence, see, e.g., Griffin v.
California, 380 U.S. 609, 615
(1965), or on his failure to present a defense, see, e.g., United States v.
Parker, 903 F.2d 91, 98-
99 (2d Cir. 1990); United States v. Walker, 835 F.2d 983, 988 (2d Cir.
1987). Remarks of the
prosecutor in summation, however, do not amount to a denial of due process
unless they
constitute "egregious misconduct." Donnelly v. DeChristoforo, 416 U.S. 637,
647 (1974). In
order to obtain reversal of a conviction on the ground that the prosecutor
has crossed the
boundary between permissible and impermissible argument, the defendant
must also show that
the improper argument caused him substantial prejudice. See, e.g., United
States v. LaMorte,
950 F.2d 80, 83 (2d Cir. 1991).

In assessing whether the comment complained of meets this test, we
consider "the
severity of the misconduct, the measures adopted to cure it, and the
certainty of conviction in the
absence of the misconduct." United States v. Melendez, 57 F.3d 238, 241 (
2d Cir. 1995); see,
e.g., United States v. Millar, 79 F.3d 338, 343 (2d Cir. 1996); United
States v. Rivera, 22 F.3d
430, 437 (2d Cir. 1994). Even where a prosecutor's argument was clearly
impermissible, we
have been reluctant to reverse where the transgression was isolated, the
trial court took swift and
clear steps to correct the implication of the argument, and the evidence
against the defendant was
strong. See, e.g., United States v. Shareef, 190 F.3d 71, 79 (2d Cir. 1999
); United States v. Cruz,
797 F.2d 90, 93 n.1 (2d Cir. 1986) (in light of the record, the argument
as a whole, and the
curative instructions, prosecutor's statement that "[t]he defense . . .
has to convince you,"
although improper, was held not to require reversal (internal quotation
marks omitted)).
In the present case, the trial judge, after hearing Datil's motion for a
mistrial, sent the jury
home, took the matter under advisement, and addressed the matter at the
start of court the next
day. The court denied Datil's motion but gave the jury a curative
instruction stating:
Ladies and gentlemen of the jury, as you heard in my initial remarks to
you and as
you will again hear in my charge to you, during the course of my charge, I
remind you that in a criminal case, the Defendant has no burden to produce
or to
explain away any evidence. To the extent that the argument of government
called upon any defendant to explain away any evidence, such argument was
improper, illegal, and should be ignored by you.
The court reiterated such an instruction in its final jury charge, stating
[i]n a criminal case, the burden is at all times upon the Government to
prove guilt
beyond a reasonable doubt. . . . This burden never shifts to the Defendant
. . . .
Defense counsel does not have any obligation to deny or refute any aspect
of the
Government's case. Nor does the Defendant himself have any burden to deny
Government's arguments or proof, or to produce any evidence whatsoever.

Therefore, you may not conclude that the Defendant has conceded a point
his counsel did not address it.
The prosecutor's inappropriate comment that Datil's counsel did not deny
the handwriting
was that of Datil was but a single sentence in the rebuttal summation. Our
review of the record
persuades us that the evidence against Datil was sufficiently strong that
the trial court's excellent
curative instructions were ample to prevent any denial of due process.
David Brown
David Brown raises three challenges to his conviction. First, he argues
that the evidence
was insufficient to support his conviction on any count. Second, he
contends that the district
court erred in charging the jury on conscious avoidance. Third, he argues
that the district court
should have permitted him to call a witness to impeach a key Government
witness. We take
these issues in turn.
Sufficiency of the evidence
An appellant arguing that there was insufficient evidence to support a
conviction bears “a
very heavy burden.” United States v. Crowley, 318 F.3d 401, 407 (2d Cir.
2003) (internal
quotation marks omitted). “[T]he evidence must be viewed in the light most
favorable to the
Government, with all reasonable inferences drawn in favor of the verdict.”
Id. To prove
conspiracy in violation of § 371, the Government must show that (1) an
agreement exists
between two or more persons to commit an unlawful act; (2) the defendants
knowingly engaged
in the conspiracy intending to commit those offenses that were the objects
of the conspiracy; and
(3) one or more of the members of the conspiracy committed an “overt act”
in furtherance of the
conspiracy. United States v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002). To
prove mail fraud or wire

fraud, the Government must show (1) a scheme to defraud, (2) to obtain
money or property, that
is (3) furthered by the use of interstate mail or wires. United States v.
Autuori, 212 F.3d 105, 115
(2d Cir. 2000). One who "aids, abets, counsels, commands, induces or
procures" the commission
of a wire-fraud offense, or "willfully causes" such an offense, may be
punished as a principal. 21
U.S.C. §§ 2(a), 2(b).
The evidence against David Brown was considerable. Two witnesses testified
that he
was present at Saturday sales meetings where employees openly discussed a
scheme to falsify the
income and employment data of potential customers so that Mitsubishi’s
financing arm,
Mitsubishi Motors Credit of America (“MMCA”), would extend credit to
individuals it would
not have found credit-worthy if given accurate information. Customers who
purchased cars
through David Brown included, inter alia: (1) Wesley Witcher, who stated
that although he had
told David Brown that his mother was unemployed, the application sent to
MMCA stated that
Witcher’s mother was working for Pratt & Whitney and earning $41,000 per
year; he also stated
that his own income was listed as $7,000 greater than he had informed
David Brown it was; and
(2) Andrea Williams, who testified that her income was falsely stated on
both her own credit
application and one on which she appeared as cosigner. David Brown’s
customers also testified
that he failed to disclose balloon payments and included hidden charges
for CD changers and
other features, some of which were not provided on the cars.
Bruce Vetre, a cooperating witness and co-conspirator, testified that
David Brown
instructed him to write down false incomes for customers to show amounts
sufficient to qualify
for loans. Vetre testified that David Brown told him to write in false
employment information
for cosigner Marie Bozzuto, and that David Brown sat next to Vetre as
Vetre used online

software to send false information to MMCA. Vetre also stated that with
respect to Andrea
Williams’s transaction, David Brown was aware that falsified postal money
orders were used to
create the appearance that Shoreline had paid off a loan for Williams’s
old car so that she could
qualify for new financing. Furthermore, Vetre testified that David Brown
would often leave the
income line blank on credit applications so that Vetre could later insert
the necessary amount of
David Brown’s arguments with respect to the sufficiency of the evidence
are mostly akin
to summation, pointing to minor alleged inconsistencies in the witnesses’
testimony and asking
us to substitute our evaluation of their credibility for the jury’s. This
we may not do. See United
States v. James, 239 F.3d 120, 124 (2d Cir. 2000); see also United States
v. Florez, 447 F.3d 145,
156 (2d Cir. 2006) (we will not “second-guess a jury’s credibility
determination on a sufficiency
challenge,” especially where the defendant “simply repeats facts and
arguments already presented
to the jury”). Drawing all inferences in the Government’s favor, there is
ample evidence that
David Brown conspired with other Shoreline employees. In addition to the
evidence already
mentioned, Vetre testified that David Brown was present at a Saturday
meeting where the
scheme was discussed, and this testimony was corroborated by Jose
Concepcion, who stated that
all salesmen were present at that meeting. Similarly, Vetre stated that on
at least one occasion
David Brown specifically instructed him to fill in a figure that would
satisfy MMCA’s
creditworthiness standards. This evidence is sufficient to sustain a
conviction on the conspiracy
count. With respect to the substantive counts, David Brown’s repeated
implication that the
Government was required to introduce specific evidence showing that David
Brown personally
prepared each or any fraudulent credit application is without merit.
Further, David Brown was

charged with aiding and abetting and causing mail and wire frauds, see 18
U.S.C. §§ 2(a) and
(2)(b), and the evidence discussed above easily permitted the jury to find
that he had caused and
assisted in such criminal conduct. The evidence allowed the jury to infer
that even if David
Brown did not personally falsify information in any given sale, he knew
from his participation in
the Saturday sales meetings that other Shoreline employees would do so,
literally filling in the
Conscious avoidance
“We review jury instructions de novo, and reverse only when the charge,
viewed as a
whole, constitutes prejudicial error.” United States v. Amato, 540 F.3d
153, 164 (2d Cir. 2008).
A conscious avoidance charge is appropriate when “(a) the element of
knowledge is in dispute,
and (b) the evidence would permit a rational juror to conclude beyond a
reasonable doubt ‘that
the defendant was aware of a high probability of the fact in dispute and
consciously avoided
confirming that fact.’” United States v. Hopkins, 53 F.3d 533, 542 (2d Cir.
1995) (quoting
United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)).
In his opening statement, David Brown’s counsel argued that the Shoreline
scheme may
have existed, but that the question before the jury was whether David
Brown was involved. In
his closing statement, he argued that it was the finance department at
Shoreline, not David
Brown, a salesman, who committed the fraud. In its jury charge, the
district court stated that the
Government was required to prove that David Brown “participated in the
scheme to defraud
knowingly, willfully and with specific intent to defraud.” The district
court added:
The Government can also meet [its] burden . . . [of] showing that the
Defendant had
knowledge of the falsity of his statements if it in fact showed beyond a
doubt that heacted with deliberate disregard of whether the witness[e]s[’]

were true or false, or with a conscious purpose to avoid learning the
truth. If the
Government establishes that the Defendant acted with deliberate disregard
for the
truth, the knowledge requirement would be satisfied unless the Defendant
believed his statements to be true. This guilty knowledge, however, cannot
established by demonstrating that the Defendant was merely negligent or
Tr. of Jury Charge at 75-76.
We conclude, first, that the use of a conscious avoidance charge was
appropriate. It was
David Brown’s counsel who put the element of knowledge in dispute by
suggesting that he was
unaware of any financing scheme. Furthermore, a rational juror could
conclude that David
Brown was aware of a high probability that the scheme existed, given,
inter alia, his presence at
the Saturday sales meetings and his frequent practice of leaving income
information lines blank
on credit applications even after customers gave him accurate information.
Second, we conclude that the instruction, although not optimal, was
sufficient. In a letter
submitted pursuant to Rule 28(j) of the Federal Rules of Appellate
Procedure, David Brown calls
our attention to our recent decision in United States v. Kaiser, 609 F.3d
556 (2d Cir. 2010). In
Kaiser, we re-emphasized that “a conscious avoidance charge must
communicate two points: (1)
that a jury may infer knowledge of the existence of a particular fact if
the defendant is aware of a
high probability of its existence, (2) unless the defendant actually
believes that it does not exist.”
609 F.3d at 565-66 (internal quotation marks omitted).
We detect no Kaiser error here. As quoted above, the district court’s
charge expressly
reminded the jury that the knowledge requirement cannot be satisfied if
the defendant actually
believes in the truth of his statements. And although the district court
did not use the “high
probability” language we strongly recommended in Kaiser, that language
carries no “talismanic
weight.” Id. at 566 (internal quotation marks omitted). Here, the district
court made clear that

mere negligence is insufficient to find conscious avoidance, and our
concern in Kaiser was that
“there [was] some risk that the jury could have convicted if it concluded
that Kaiser was merely
negligent.” Id. Although the district court’s charge in this case differed
from the language we
strongly encouraged in Kaiser — and we strongly recommend that prosecutors
request and
district courts employ the Kaiser language in the future — on the facts of
this case we conclude
that any deficiency in the charge did not amount to prejudicial error.
David Brown’s reply brief suggests the possibility that he misunderstands
our cautionary
statement that “‘[a]n instruction that the jury cannot find knowledge on
the basis of mistake or
accident is not an acceptable substitute for the balancing charge which
incorporates the concept
of actual belief.’” Id. (quoting United States v. Sicignano, 78 F.3d 69,
72 (2d Cir. 1996)). That
warning does not mean that the “high probability” language must be used
verbatim, nor does it
mean that cautioning the jury against mere negligence cannot serve to
communicate the
requirement of “high probability.” Rather, it means that explaining the
requirement is no substitute for a separate explanation that a defendant’s
actual belief of facts
contrary to those allegedly consciously avoided absolves the defendant of
responsibility. Id.
(district court’s charge “contained nothing to suggest that actual belief
would absolve Kaiser of
culpability”). The district court’s charge in this case did not commit
that mistake, because it did
expressly state that actual belief of a contrary proposition (in this case,
an affirmative belief on
David Brown’s part that there was no scheme to defraud at Shoreline) would
prevent a finding of
conscious avoidance. The central purpose of a conscious avoidance charge,
after all, is to hold

those accountable who willfully blind themselves to the wrongful purpose
of underlying acts that
may be innocent absent that purpose.1
The preclusion of James Jarmon’s testimony
On direct examination, Vetre admitted that, in addition to participating
in the fraud, he
had submitted a false credit application to lease a Lexus for his own
personal use. On cross-
examination, the following exchange took place:
[David Brown's counsel]: Was there a time when you wanted to get rid of
[Vetre]: Yes.
[David Brown's counsel]: Did you speak to anyone about having it brought
to a chop
[Vetre]: No.
Later, David Brown’s counsel sought to call James Jarmon, a former
Shoreline salesman, to
testify that Vetre had asked people in the dealership whether someone
could arrange for Vetre’s
leased Lexus to be stolen and taken to a chop shop in the Bronx. The
Government moved in
limine to preclude Jarmon’s testimony pursuant to Rule 608(b) of the
Federal Rules of Evidence2
as extrinsic evidence on a collateral matter. The district court granted
the Government’s motion
and precluded the testimony.
We made this distinction clear in Kaiser, in which the district gave a
instruction stating that “‘mere presence or mere acquaintance with
conspirators’ was insufficient,
and that conscious avoidance pertained only to ‘the objects of the
conspiracy or the substantive
crime.’” 609 F.3d at 565.
“Specific instances of the conduct of a witness, for the purpose of
attacking or
supporting the witness’ character for truthfulness, other than conviction
of crime as provided in
Rule 609, may not be proved by extrinsic evidence. They may, however, in
the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the
witness (1) concerning the witness’ character for truthfulness or
untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of another witness as to
which character the
witness being cross-examined has testified.”

We review for abuse of discretion a district court’s decision to preclude
evidence offered
to impeach a witness. See United States v. Ramirez, 609 F.3d 495, 499 (2d
Cir. 2010). We
discern no abuse of discretion in the district court’s application of Rule
608(b), which prohibits
the use of extrinsic evidence of specific instances to attack a witness’
character for truthfulness.
In his brief, David Brown admits that his purpose in introducing Jarmon’s
testimony would have
been to impeach Vetre. Although David Brown argues that the court’s ruling
allowed Vetre to
“perjure himself without any consequences,” D. Brown Br. at 28, we have
recognized that cross-
examination is generally the proper mechanism by which to test an adverse
witness’s credibility,
and the use of extrinsic evidence to further pursue questions posed on
cross-examination is
generally not permitted. See United States v. Masino, 275 F.2d 129, 133 (
2d Cir. 1960) ("When
a witness is cross-examined for the purpose of destroying his credibility
by proof of specific acts
of misconduct not the subject of a conviction, the examiner must be
content with the answer.
The examiner may not, over objection, produce independent proof to show
the falsity of such an
answer."); see also United States v. Castillo, 181 F.3d 1129, 1133 (9th
Cir. 1999).
Even if, in an appropriate case, we ought to allow cross-examination
testimony to be
impeached by extrinsic contradiction, it is unnecessary to announce any
such rule today, because
any error was harmless. “Error is harmless if it is highly probable that
it did not contribute to the
verdict.” United States v. Gomez, 617 F.3d 88, 95 (2d Cir. 2010) (internal
quotation marks
omitted). Any impeachment of Vetre based on Jarmon’s testimony would have
been of very
minor significance, given that Vetre had already admitted to participating
in the Shoreline fraud
and to fraudulently leasing the Lexus in the first place. We think it is
highly probable that the
jury’s verdict would have been unchanged by Jarmon’s testimony.

Finding no merit in any of David Brown’s arguments, we affirm his
Richard Brown
We review sentences for reasonableness, which is “akin to review for abuse
discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).
Reasonableness has
both procedural and substantive components. See United States v. Avello-
Alvarez, 430 F.3d 543,
545 (2d Cir. 2005). A district court commits procedural error if it fails
to calculate the
Guidelines range (unless omission of the calculation is justified), errs
in its Guidelines
calculation, treats the Guidelines as mandatory, does not consider the
factors set forth in 18
U.S.C. § 3553(a), rests its sentence on a clearly erroneous factual
determination, or fails to
adequately explain its chosen sentence (including any deviation from the
Guidelines range). See
United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). In
reviewing sentences for
substantive reasonableness, we apply a “deferential abuse-of-discretion
standard,” and will set
aside the district court’s sentence “only in exceptional cases where [its]
decision cannot be
located within the range of permissible decisions.” Id. at 189 (internal
quotation marks omitted).
The district court sentenced Richard Brown principally to 60 months, well
below the
bottom of the 92 to 115 months recommended by the Guidelines. Richard
Brown argues that:
(1) the district court failed to address his argument that he had a minor
role in the offense; (2) it
failed to adequately analyze the 18 U.S.C. § 3553(a) factors; and (3) it
failed to consider the
disparities between his sentence and that of his co-defendants. We find
none of these contentions
First, the transcript of the sentencing hearing reflects that the district
court considered,
and rejected, Richard Brown’s assertion that his role in the offense was
minor. After listening to

a presentation by counsel about offense role, the district court observed
that the record indicated
that, in at least one instance, Richard Brown had personally filed a false
credit application, and
asked the defense to respond. The defense’s only response was a blunt
denial of responsibility by
Richard Brown himself, which the district court understandably did not
find persuasive. We thus
reject the suggestion that the district court failed to address the
defense’s arguments regarding
We also disagree with Richard Brown’s contention that the district court
failed to give
adequate attention to the 18 U.S.C. § 3553(a) factors or provided
insufficient reasoning for its
sentence. A district court need not “expressly parse or address every
argument relating to those
factors that the defendant advanced,” and we entertain “a strong
presumption that the sentencing
judge has considered all arguments properly presented to her, unless the
record clearly suggests
otherwise.” Fernandez, 443 F.3d at 29-30. No “robotic incantation” is
needed to prove that
consideration of all of the § 3553(a) factors occurred. Id. at 30 (quoting
United States v. Crosby,
397 F.3d 103, 113 (2d Cir. 2005)).
The district court noted that the Guidelines range for Richard Brown was “
largely driven
. . . by Mr. Brown’s criminal history.” Tr. of R. Brown Sent. at 28. The
court nevertheless
imposed a below-Guidelines sentence of 60 months and stated that the
sentence was based on
“the trial that I sat through, my knowledge of the case, and Mr. Brown’s
participation in this
conspiracy.” Id. It is distinctly the role of the district court to
determine what weight is to be
afforded to each § 3553(a) factor, and we consider only “whether a factor
relied on by a
sentencing court can bear the weight assigned to it.” Cavera, 550 F.3d at
191. The district
court’s statements at sentencing demonstrate that it considered Richard
Brown’s lengthy criminal

history and recidivism as especially significant factors in fashioning an
appropriate sentence.
Especially given the substantially below-Guidelines sentence imposed, we
cannot see any basis
for stating that the district court attached undue weight to this
particular factor.
For much the same reasons, we do not agree that the district court failed
to consider “the
need to avoid unwarranted sentence disparities among defendants with
similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Richard
Brown’s co-defendants
were in lower Criminal History Categories — Category III in the case of
and Category II
in the case of David Brown. Richard Brown also complains that he received
the same sentence
as another co-defendant, Angel Hernandez, despite Hernandez’s conviction
additional counts and
significantly greater role in the offenses. But Hernandez’s criminal
history was Category I, in
contrast to Richard Brown’s Category V. The district court, again, made
clear that Richard
Brown’s persistent recidivism was the predominant factor at his sentencing.
There is accordingly
no basis for us to conclude that any sentence disparity was unwarranted.
See Fernandez, 443
F.3d at 28 (“[A] disparity between non-similarly situated co-defendants is
not a valid basis for a
claim of error under 18 U.S.C. § 3553(a)(6).”) (emphasis in original). We
thus affirm Richard
Brown’s sentence.
The district court sentenced Datil to a single day in prison (plus three
years of
supervised release, with the first six months to be served in a halfway
house), but did so in part
because, in findings that were almost exactly the opposite of its findings
regarding the lack of
deterrent effect that Richard Brown's prior convictions had on Brown, it
concluded that Datil
“has been sufficiently shocked and disturbed by this prosecution, to be
deterred from any further
conduct of that kind.” Tr. of Datil Sent. at 52.

We have considered all of the appellants’ other arguments and find them to
be without
merit. Accordingly, we AFFIRM the judgment of the district court with
respect to each

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